Citation Nr: 1806441
Decision Date: 02/01/18 Archive Date: 02/14/18
DOCKET NO. 14-14 576 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama
THE ISSUES
1. Entitlement to service connection for residuals of a right ankle injury.
2. Entitlement to service connection for residuals of a left ankle injury.
3. Entitlement to service connection for tinnitus.
4. Entitlement to service connection for bilateral knee disorders.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
The Veteran and his spouse
ATTORNEY FOR THE BOARD
Y. Taylor, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1989 to July 1993.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).
In April 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ) during at a videoconference hearing. A transcript of that hearing is of record.
This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. Accordingly, any future consideration of the Veteran's case should take into account the existence of this electronic record.
FINDINGS OF FACT
1. The Veteran has a current disability for his right ankle, which was as likely as not caused by an injury in service.
2. The Veteran has no current disability for his left ankle.
3. The Veteran is competent to report that he has experienced ringing in his ears since service.
4. The Veteran has no current disability of his bilateral knees and no pertinent findings in service.
CONCLUSIONS OF LAW
1. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for residuals of a right ankle injury have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303. 3.304, 3.307, 3.309 (2017).
2. The criteria for entitlement to service connection for residuals of a left ankle injury have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303. 3.304, 3.307, 3.309 (2017).
3. With resolution of reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303. 3.304, 3.307, 3.309 (2017).
4. The criteria for entitlement to service connection for bilateral knee disorders have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303. 3.304, 3.307, 3.309 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duty to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2017). If the VCAA is applicable, the Board must ensure that the required notice and assistance provisions of the law have been properly applied.
With respect to the claims for a right ankle injury and tinnitus, the Board is granting in full the benefit sought on appeal. Therefore, the Board need not discuss whether there has been compliance with the VCAA because any noncompliance ultimately amounted to no more than harmless error. 38 C.F.R. § 20.1102 (2016). See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009).
As for the issues of left ankle injury and bilateral knee conditions, VA satisfied its duty to notify the Veteran pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. §5103 (West 2014); 38 C.F.R. § 3.159(b) (2017). VA provided the required notice in June 2010, prior to the initial adjudication and readjudication of the claim in a supplemental statement of the case (SSOC). See Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2007) (VCAA notice must generally be provided prior to the initial rating decision).
VA also satisfied its duty to assist the Veteran in developing his claim. 38 U.S.C.A. § 5103A (West 2014). The RO associated all available service treatment records (STRs), service personnel records (SPRs), and private and VA treatment records with the claims file.
The Veteran has not been afforded a VA examination, with an opinion as to the etiology for a left ankle injury or bilateral knee conditions. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a Veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the Veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2014); 38 C.F.R. § 3.159(c)(4) (2017). See also McLendon v. Nicholson, 20 Vet. App.79, 83-86 (2006).
The Board finds that an examination is not needed in this case because there is no medical evidence to support a current diagnosis of a disability for left ankle and bilateral knees. The United States Court of Appeals for Veterans Claims (Court) has held, in circumstances similar to this, where the supporting evidence of record consists only of a lay statement, that VA is not obligated to provide an appellant with a medical nexus opinion pursuant to 5103A(d). See Paralyzed Veterans of America v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1355-57 (Fed. Cir. 2003) (holding that 38 C.F.R. § 3.159(c)(4)(i) is not in conflict with 38 U.S.C.A. § 5103A(d) and that evidence of record "establishing that the Veteran suffered an event, injury, or disease in service" is required to trigger VA's duties pursuant to section 5103A(d)); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003) (holding that the Secretary's obligation under section 5103A to provide a claimant with a medical examination or to obtain a medical opinion is triggered if the evidence of record demonstrates "some causal connection between his disability and his military service"). There is no reasonable possibility that a medical opinion would aid in substantiating the Veteran's claim since his STRs and medical records after service do not show any evidence of occurrence of left ankle injury or bilateral knee disabilities in service, and there is no evidence showing arthritis within 1 year of service separation.
II. Service Connection
The Veteran is seeking entitlement to service connection for residuals of a right ankle injury, residuals of a left ankle injury, tinnitus, and bilateral knee disorders.
Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131 (2012). Establishing service connection generally requires competent evidence of three elements: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a) (2017). Service connection may be granted for any disease diagnosed after separation when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017).
Chronic diseases will be granted service connection if manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.309(a), 3.307(a)(3). Organic diseases of the nervous system are "chronic"diseases. 38 C.F.R. § 3.309(a). The Court has held that tinnitus, where there is evidence of acoustic trauma, is an organic disease of the nervous system for the purposes of 38 C.F.R. § 3.309(a). See Fountain v. McDonald, 27 Vet. App. 258, 271 (2015).
Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. 38 U.S.C. § 5107 (2012). VA shall consider all information and lay and medical evidence of record in a case. If a preponderance of the evidence supports a claim, or if a claim is in relative equipoise, the claimant shall prevail. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). If a preponderance of the evidence is against a claim, it will be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). If there is an approximate balance of positive and negative evidence regarding any material issue, the benefit of the doubt goes to the claimant. Gilbert, 1 Vet. App. at 53-54.
Residuals of a Right Ankle Injury
First, review of the Veteran's STRs reveals that the Veteran had a right ankle injury after a football game during service in October 1990. The record shows that he was diagnosed with secondary sprain to the right ankle and he had treatment for the injury for about a month until it resolved. Second, the Veteran reported to medical professionals in the course of treatment that he had been experiencing pain on and off since the injury. See e.g., December 2011 treatment record by Dr. W.P.. Lastly, in August 2012, the Veteran underwent a CT scan of his right ankle, which revealed an ossification area along the lateral surface of the distal tibial diaphysis laterally. It was also found that this area most likely reflected ossification of the interosseous membrane probably a sequelae of an old high ankle injury. Indeed, in October 2012, the Veteran's private doctor, Dr. W.P., stated that the Veteran originally injured his right ankle in the military and that he developed calcification in the distal fibula syndesmosis interosseous ligament. The doctor further noted that this was the source of his pain.
Therefore, resolving the benefit of the doubt in favor of the Veteran, the Board finds that the Veteran has a current right ankle disability, which was caused by an injury in service; and thus, the Board finds that the criteria for establishing service connection for a right ankle disability have been met.
Residuals of a Left Ankle Injury
A thorough review of the Veteran's claims file reveals no medical evidence to support any complaint, injury, or treatment, in service or not, for the Veteran's left ankle. Therefore, the criteria for establishing service connection for a left ankle injury have not been met. Further, no current left ankle disability reasonably related to service has been demonstrated.
Tinnitus
The Veteran underwent a VA ear conditions examination in January 2013. The examiner diagnosed the Veteran with tinnitus. However, this examination concluded that the cause of the Veteran's tinnitus could not be fully evaluated without an audiological examination, although the examiner explicitly rejected the causal relationship between tinnitus and external otitis reported on July 24, 1990.
The medical evidence of record reveals that the Veteran had an audiological examination at Auburn University Speech & Hearing Clinic in June 2016. The Veteran reported that the onset of his tinnitus was in 1991. June 2016 Auburn audiological evaluation, at 1. The Veteran further reported that he served as a supply clerk working in warehouses with excessively loud conveyer belts for 8-10 hours per day and was also frequently exposed to explosions and gunfire. Id. The Veteran stated that the hearing protection was available to him during training to this exposure of noise, but it was not provided during daily activity when he was exposed to the excessively loud noises within his assigned work site. Id. The Veteran reported having difficulties at work listening to the radio because of the intermittent tinnitus and having to turn the radio up louder than needed to cover the ringing. Id. He stated that his tinnitus was bothersome at night and intermittently throughout the day while at work. Id. at 2. The examiner concluded that the Veteran's tinnitus as more likely than not related to the precipitant factor of excessive noise exposure while in service. Id. at 3.
After careful consideration of the record and in view of the above, the Board finds that evidence is in relative equipoise such that a finding of tinnitus related to service may be conceded. Therefore, based on the lay and medical evidence of record, the benefit of the doubt is resolved in favor of the Veteran in granting service connection for tinnitus. 38 U.S.C. § 5107.
Bilateral Knee Disorders
Review of the Veteran's claims file yields only single entry that describes the Veteran's knee condition. In September 2001, the Veteran visited Providence Family Physicians for patellofemoral pain. He reported that he had "pretty significant patellofemoral pain with squatting, stooping" and stated that he had discomfort more on his right knee than left. He reported that he had no previous injury and did not have giving out sensation. The doctor noted that he had an impression of patellofemoral pain, chondromalacia and recommended that the knees would be iced and elevated. No follow-up record is found in the claims file. In April 2016 hearing, the Veteran testified that he had "bad knees." April 2016 hearing transcript, at 16. But then he stated that he had no recollection of knee symptoms in service. Id.
Based on the evidence of record, the Board finds that the Veteran has no current diagnosis for his bilateral knee disorders that is related to service. He did not have in-service injuries leading to his claimed conditions.
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ORDER
Entitlement to service connection for residuals of a right ankle injury is granted.
Entitlement to service connection for residuals of a left ankle injury is denied.
Entitlement to service connection for tinnitus is granted.
Entitlement to service connection for bilateral knee disorders is denied.
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MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs